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TMI Blog2010 (8) TMI 498X X X X Extracts X X X X X X X X Extracts X X X X ..... n Christian, P.M. Dave and Devan Parikh, Advocates, for the Appellant. Shri Rajendra Nagar, SDR, for the Respondent. [Order per : Archana Wadhwa, Member (J)] . - All the appeal are being disposed off by a common order inasmuch as they arise out of two different order of Commissioner. The facts, investigation and evidence collected by the Revenue are identical and the parties are common. 2. M/s. Sunshine and M/s. Alamin exports are engaged in the manufacture of readymade garments. They are 100% EOUs and have been granted a Letter of Permission for private bonded warehouse and to manufacture the goods under bond. On the basis of intelligence collected by the Revenue that the said two units were procuring huge quantity of polyester fabrics from the other 100% EOU under CT-3 certificates for the purpose of manufacturing and exporting the readymade garments, but the said duty free procured fabrics are being diverted by them in the local domestic market and the cheaply procured final products are being exported so as to cover the exports, the factory premises were raided on 21-6-2003 and various investigations were made. As a result, it was found that either machines are not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eas and Al Amin Exports have used the substitute material for export in place of goods of high quality required to be made from duty free obtained from other 100% EOUs. Commissioner has dealt with the appellant s contention as to non-applicability of the provisions of Section 113 of Customs Act, 1962 in detail, by referring to Apex Court judgment in the case of Omprakash Bhatia v. Commissioner of Customs, Delhi - 2003 (155) E.L.T. 423 (S.C.) and has rightly concluded that the goods attempted to export being over invoiced, would fall within the ambit of prohibited goods under Section 113(i) of the Customs Act and confiscation of the same can be legally ordered As regards confiscability of the seized goods under Rule 25 of Central Excise Rules, 2002, the Commissioner after referring the provisions of Rule 25 of Central Excise Rules, 2002 has observed as under :- It is very clear from the wording of Rule 25 that the rule is applicable to any producer, manufacturer, registered person of warehouse or a registered dealer and their activities related with excisable goods as enumerated under (a) to (d) of Rule 25 (1) of the rules. The investigating agency has successfully proved that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd Rule 26 of the Central Excise Rules, 2002. The said appellants have contended that separate penalties on the partnership firm and the partners cannot be imposed in terms of the law declared by the Tribunal in the case of Ramnarain Company v. Commissioner of Customs - 2003 (157) E.L.T. 308 (Tribunal), as also in the case of Commissioner of Customs (E.P.) v. Jupiter - 2007 (213) E.L.T. 641 (Bom.). They have also contested imposition of penalty on the said provisions on the ground that the composite penalty has been imposed under two different statutes i.e. Section 114 of Customs Act and Rule 26 of the Central Excise Rules, 2002 by placing reliance on various decisions of the Tribunal. Its stand contended before us that such composite penalty imposition cannot be upheld. Reliance, for the above proposition stands made on Tribunal decisions in the case of Shivrati Textile Pvt. Limited v. CCE - 2006 (205) E.L.T. 817 (Tribunal), in the case of Shri R.G. Agarwal v. CCE - 2007 (210) E.L.T. 274 (Tribunal) and in the case of CCE v. Shri R.G. Agarwal - 2008 (88) RLT 925 (Guj.) = 2009 (234) E.L.T. 215 (Guj.). 6. Learned DR appearing for the Revenue has contested the above stand of the a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erefore, of the view that looking to the provisions of the Act, no composite/consolidated penalty can be levied on the respondent. Since the Tribunal has taken the correct view, we do not see that any substantial question of law arises out of the order of the Tribunal. 8. Inasmuch as in the present case a composite penalty stands imposed on the partners under the provisions of two different Acts, without an partners under the provisions of two different Acts, without any demarcation, we are constrained to set aside the same on the above ground, in terms of the various precedent decisions of the Tribunal as also the Hon ble Gujarat High Court. As the penalty o the partners is being set aside on the above ground, we are not dealing with the second ground raised by the learned advocate that penalty on the partners as also partnership firm cannot be imposed. 9. For the similar reasons, penalty imposed on Shri Bilal Latif Memon in both the appeals under two different orders of Commissioner is required to be set aside. Otherwise also, we find that allegations against Shri Bilal Latif Memon is that he had manufactured and sent the goods to two 100% EOUs, which by itself cannot be hel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 11. Challenging the above finding of the Commissioner, learned advocate appearing on behalf of the appellants submitted that the said findings of the appellate authority, even if, accepted to be true, do not amount to any act of abetment. Officers failure to perform their duties of scrutinizing/examining, at best be the dereliction of duties, which can be proceeded with in terms of CCR Rules. Inasmuch as there is no evidence on record showing any abetment by the officers, mere lapse to perform their duties in accordance with the law, cannot be held against them so as to invoke the provisions of Section 114 of Customs Act. For the above proposition, reliance is placed on following decisions of the Tribunal :- (a) CC, Bangalore v. M. Naushad - 2007 (210) E.L.T. 464 (Tri.-Bang.) (b) CC, New Delhi v. Hargovind Export - 2003 (158) E.L.T. 496 (Tri.-Delhi.) (c) CC, New Delhi v. M.I. Khan - 2000 (120) E.L.T. 542 (Tri.-Delhi.) (d) CC CCE, Hyderabad-II v. Rajiv Kumar Agarwal - 2007 (217) E.L.T. 392 (Tri.-Bang.) (e) A.P. Sales v. CC, Hyderabad - 2006 (198) E.L.T. 309 (Tri.-Bang.) 12. The ratio of all the above decisions in the absence of any evidence to reflect up ..... X X X X Extracts X X X X X X X X Extracts X X X X
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